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Feb 9, 2016

By Sonya Rosenberg

Employees’ use of social media at work and outside of it has become a real — and important — concern for many employers.

While the law continues to lag behind, with the National Labor Relations Board still holding strong as the pioneer for emerging cases and guidance about social media-related employment policies and practices, the following three tips address employers’ most commonly expressed legal concerns in this area:

1. Think (twice, if necessary) before you act

Many social media cases have similar fact patterns that tend to go like this:

  1. Employee makes offensive Facebook post, usually using expletives about a boss or the job itself;
  2. Manager gets mad and terminates employee;
  3. Employee claims the post is protected by the National Labor Relations Act;
  4. The NLRB, more often than not, agrees with employee, and employer loses.

These cases implicate Section 7 of the NLRA, which gives all employees, both in unionized and in non-union work settings, the legal right to engage in protected, concerted activities – i.e., to discuss and otherwise interact with one another regarding, among other things, various terms and conditions of work.

According to the NLRB, an employer policy or practice will be deemed in violation of the NLRA if, as applied or enforced, it prohibits, interferes with or even tends to have a chilling effect on Section 7 activities. In these kinds of fact patterns, HR often must take the critical role of preventing their business partners from acting rashly.

It is imperative to look beyond the offensive — granted, sometimes highly offensive — nature of the post, and examine critically whether the post may reasonably be interpreted to implicate discussion of any terms and conditions of work. Some common examples include comments, or even just “likes,” regarding an employee’s complaints about low pay, long hours, bullying or otherwise unfair treatment by management.

Look at each post through the NLRA lens, and err on the side of caution and call your labor lawyer with any related doubts or concerns before any disciplinary action is taken.

2. Consider social media privacy protections

More than 20 states presently have laws that generally prohibit employers from requesting that their applicants and employees disclose their passwords  or otherwise provide access to their password-protected, private social media accounts. At least 10 more states presently have related, pending legislation in the works.

Given this, HR managers should be sensitive about the origins of a given post, and the appropriate follow-up regarding it.

Generally speaking, the rule of thumb is that social media activity that is publicly viewable — for example, on Facebook, without being a “friend” of the person — is fair game for further investigation and, if appropriate, corrective action.

If the post is on a private or restricted social media account, however, avoid asking the account holder or his or her friends for the password, or otherwise demanding access.

Consult with counsel about how to best handle investigations involving such accounts lawfully.

3. Implement a social media policy

Employers that have struggled with or even anticipated social media issues in their workplace should review and, if necessary, update their existing relevant policies, and implement a dedicated, effective social media policy.

It is important to remember that social media activities that impact the workplace — be it, potentially, through the compromise of confidential business information, or through posts that may be threatening, harassing or otherwise mistreating of other employees — when brought to management’s attention, must be properly investigated and addressed just like other problematic workplace conduct, including comments, emails, or physical or other conduct.

In this regard, existing handbook policies — including policies prohibiting harassment and discrimination, standards of conduct, and policies governing the use of the employers’ communications systems — as well as a dedicated social media policy that meets the NLRB’s requirements, while effectively preventing and providing disciplinary measures for employees’ inappropriate social media activities, are likely to play the key role.

Given recent activity from the NLRB, employers must be careful to craft these policies such as to ensure they not only reflect the needs and culture of their individual workplace, but include legally compliant provisions to help deter and effectively remedy problems that may arise.

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